No. 22O155

In the

In the Supreme Court of the United States ⎯⎯⎯⎯⎯ ⎯⎯⎯⎯⎯

STATE OF TEXAS,

Plaintiff,

v.

COMMONWEALTH OF PENNSYLVANIA, STATE OF

GEORGIA, STATE OF MICHIGAN, AND STATE OF

WISCONSIN,

Defendants.

⎯⎯⎯⎯⎯ ⎯⎯⎯⎯⎯

On Motion for Leave to File a Bill of Complaint and

Motion for Expediated Consideration and for Emergency

Injunctive Relief or Stay

⎯⎯⎯⎯⎯ ⎯⎯⎯⎯⎯

RESPONSE TO MOTION FOR LEAVE TO FILE

BILL OF COMPLAINT AND TO MOTION FOR

PRELIMINARY INJUNCTION AND

TEMPORARY RESTRAINING ORDER OR

STAY

⎯⎯⎯⎯⎯ ⎯⎯⎯⎯⎯ JOSHUA L. KAUL

Attorney General of Wisconsin

THOMAS C. BELLAVIA

Counsel of Record

Assistant Attorney General

Wisconsin Department of Justice

17 West Main Street

Madison, WI 53703

(608) 266-8690

bellaviatc@doj.state.wi.us

i

QUESTIONS PRESENTED

1. Whether various jurisdictional deficiencies

should persuade or otherwise prevent this Court from

exercising original jurisdiction over the proposed bill

of complaint?

2. Whether the bill of complaint should be

dismissed under principles of laches and where the

remedy sought would violate Wisconsin voters’

constitutional rights and the separation of powers?

3. Whether the bill of complaint should be

dismissed where Texas fails to state a claim upon

which relief may be granted?

4. Whether Texas’s requests for injunctive relief,

or alternatively, a stay, should be denied?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................ i

TABLE OF AUTHORITIES ............................... v

JURISDICTION .................................................. 1

INTRODUCTION ............................................... 1

STATEMENT OF THE CASE ............................ 2

REASONS FOR DENYING THE PETITION

AND REQUEST FOR PRELIMINARY

RELIEF ............................................................... 4

I. This Court should not exercise original

jurisdiction. ................................................... 4

A. Texas has no cognizable interest in

challenging Wisconsin’s

administration of its own election

laws. ............................................... 5

B. Texas seeks to litigate claims that

have already been brought in other

fora. ................................................ 8

C. Granting Texas’s request would

undermine the legitimacy of this

Court and threaten faith in

American democracy. .................... 9

iii

II. Texas’s suit is barred by principles of

laches and the constitutional violations its

desired remedy would cause. ................. 11

A. Texas waited too long to bring

suit. ............................................... 11

B. The post-election remedy Texas

seeks would violate the due process

rights of Wisconsin voters and is not

supported by 3 U.S.C. § 2. ........... 13

1. The relief Texas seeks would

violate the due process rights

of Wisconsin voters. ............. 14

2. Texas’s invocation of 3 U.S.C.

§ 2 does not help it. .............. 18

III. Texas fails to state a claim under the

Electors Clause, due process, or equal

protection, and its arguments about

Wisconsin law are wrong on their

face. ......................................................... 20

A. Texas’s allegations of Wisconsin

state election law violations fail

to state an Electors Clause

claim. ............................................ 20

B. Texas states no claim under due

process or equal protection. ......... 26

iv

C. Texas’s assertions of violations of

Wisconsin law are meritless on

their face. ..................................... 29

1. Drop boxes are legal under

Wisconsin law. .................... 29

2. The Wisconsin Supreme

Court has approved of the

Commission’s guidance on

indefinitely confined

voters. ................................. 30

3. Wisconsin’s practice for

handling witness addresses,

in place since 2016, followed

state law. ............................ 32

IV. Texas cannot justify preliminary relief or

a stay. ...................................................... 33

CONCLUSION .................................................. 35

RESPONDENT’S APPENDIX A: Jefferson v.

Dane County, No. 2020AP557-OA (Wis. Sup.

Ct.), Order (Mar. 31, 2020) ............................... 1a

v

TABLE OF AUTHORITIES

Cases

Baber v. Dunlap,

349 F. Supp. 3d 68 (D. Me. 2018) ......................... 16

Bennett v. Yoshina,

140 F.3d 1218 (9th Cir. 1998) ........................ 16, 27

Bodine v. Elkhart Cty. Election Bd.,

788 F.2d 1270 (7th Cir. 1986) .............21, 22, 23, 27

Bognet v. Sec’y of the Comm. of Pennsylvania,

__ F.3d. __, 2020 WL 6686120

(3d Cir., Nov. 13, 2020) ............................. 20, 22, 28

Bowsher v. Synar,

478 U.S. 714 (1986) .............................................. 25

Bush v. Gore,

531 U.S. 98 (2000). ......................................... 15, 23

Donald J. Trump for President, Inc. v. Pennsylvania,

No. 20-3371, 2020 WL 7012522

(3d Cir. Nov. 27, 2020) .......................................... 35

Fulani v. Hogsett,

917 F.2d 1028 (7th Cir. 1990) .............................. 12

Gamza v. Aguirre,

619 F.2d 449 (5th Cir. 1980) .......................... 29, 32

Goodman v. Ill. Dep’t of Fin. & Prof’l Regulation,

430 F.3d 432 (7th Cir. 2005) ................................ 33

Griffin v. Burns,

570 F.2d 1065 (1st Cir. 1978) ......................... 15, 17

Illinois Republican Party v. Pritzker,

973 F.3d 760 (7th Cir. 2020) ................................ 34

vi

Jones v. Markiewicz-Qualkinbush,

842 F.3d 1053 (7th Cir. 2016) .............................. 11

Kelly v. Commonwealth of Pennsylvania,

No. 68 MAP 2020, 2020 WL 7018314

(Pa. Nov. 28, 2020) ............................................... 15

Louisiana v. Texas,

176 U.S. 1 (1900) ................................................ 4, 8

Martinez v. Colon,

54 F.3d 980 (1st Cir. 1995) ................................... 20

Maryland v. Louisiana,

451 U.S. 725 (1981) ................................................ 5

Miller v. Johnson,

515 U.S. 900 (1995) .............................................. 27

Miller v. Treadwell,

736 F. Supp. 2d 1240 (D. Alaska 2010) ............... 24

Mississippi v. Louisiana,

506 U.S. 73 (1992) .................................................. 4

New York v. New Jersey,

256 U.S. 296 (1921) ............................................ 4, 5

Northeast Ohio Coalition for Homeless v. Husted,

696 F.3d 580 (6th Cir. 2012) ................................ 17

Pennsylvania v. New Jersey,

426 U.S. 660 (1976) ............................................ 6, 7

Reynolds v. Sims,

377 U.S. 533 (1964) .............................................. 27

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) .................................... 10, 11

Senate,

No. 06-2031, 2006 WL 8435145 ........................... 16

vii

Shipley v. Chicago Bd. of Election Comm’rs,

947 F.3d 1056 (7th Cir. 2020) ........................ 20, 22

Spokeo, Inc. v. Robins,

136 S. Ct. 1540 (2016) ............................................ 6

Tetra Tech EC, Inc. v. Wisconsin Dep’t of Revenue,

2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21 ..... 25

Thornburg v. Gingles,

478 U.S. 30 (1986) ................................................ 27

United States v. Classic,

313 U.S. 299 (1941) .............................................. 15

Williams v. Rhodes,

393 U.S. 23 (1968) ................................................ 15

Winter v. Nat. Res. Def. Council,

555 U.S. 7 (2008). ........................................... 33, 34

Wright v. Sumter Cty. Bd. of Elections &

Registration,

361 F. Supp. 3d 1296 (M.D. Ga. 2018) ................. 16

Wyoming v. Oklahoma,

502 U.S. 437 (1992) ................................................ 4

Constitutional Provisions U.S. Const. art. II, § 1, cl. 2 ..................................... 23

U.S. Const. art. III, § 2, cl. 2 ...................................... 1

U.S.Const. art. V, cl. 3 ............................................... 6

Statutes

3 U.S.C. § 1 ............................................................... 19

3 U.S.C. § 2 ..............................................13, 14, 18, 19

28 U.S.C. § 1251(a) ..................................................... 1

viii

Wis. Stat. § 5.05(12) ................................................... 2

Wis. Stat. § 5.05(1) ..................................................... 2

Wis. Stat. § 5.05(15) ................................................... 2

Wis. Stat. § 5.10 ................................................. 14, 25

Wis. Stat. § 5.64(1)(em) ...................................... 14, 25

Wis. Stat. § 6.36 ......................................................... 2

Wis. Stat. § 6.855(1) ................................................. 30

Wis. Stat. § 6.86(2)(a) ............................................... 30

Wis. Stat. § 6.87(2) ................................................... 32

Wis. Stat. § 6.87(4)(b)1. ...................................... 30, 32

Wis. Stat. § 7.08(3) ..................................................... 2

Wis. Stat. § 7.08(11) ................................................... 2

Wis. Stat. § 7.10 ......................................................... 3

Wis. Stat. § 7.70 ......................................................... 3

Wis. Stat. § 8.25(1) ............................................. 14, 25

1

JURISDICTION

Plaintiff, the State of Texas, seeks leave to file an

original action against Pennsylvania, Georgia,

Michigan, and Wisconsin in this Court and pursuant

to Article III, § 2, cl. 2 of the U.S. Constitution and 28

U.S.C. § 1251(a).

INTRODUCTION

Texas proposes an extraordinary intrusion into

Wisconsin’s and the other defendant States’ elections,

a task that the Constitution leaves to each State.

Wisconsin has conducted its election and its voters

have chosen a winning candidate for their State.

Texas’s bid to nullify that choice is devoid of a legal

foundation or a factual basis. This Court should

summarily dismiss the motion to file the bill of

complaint.

Multiple factors weigh against exercising

jurisdiction here. Texas does not have a cognizable

interest in how Wisconsin runs its elections, and there

are alternative forums to raise these issues. Such

cases are taking place even as this brief in opposition

is being filed.

Texas’s choice to challenge Wisconsin law after

the election also counsels against taking this case.

Laches principles counsel that Texas cannot harm the

interests of Wisconsin voters when it could easily

have raised its concerns earlier. And the remedies it

seeks would violate voters’ due process rights and

separation of powers principles.

2

Further, Texas’s claims have no merit. It states

no claim under the Electors Clause, equal protection,

or due process, and its basic arguments about how

Wisconsin state law works are flat out wrong.

Given all these facts, it is no surprise that Texas

fails to establish any of the requisite factors necessary

for granting preliminary relief. It has no likelihood of

success on the merits of its clams, and the harm and

public interest factors strongly weigh in favor of

denying the extraordinary relief Texas seeks—

stripping millions of voters of the choice they made.

This Court should deny the State of Texas’s

motion to file a bill of complaint and deny its motion

for injunctive relief.

STATEMENT OF THE CASE

Underlying Texas’s novel constitutional argument

are three challenges to how the Wisconsin Elections

Commission and local election officials administer

elections in Wisconsin. The Commission is

responsible for administering elections in Wisconsin.

See Wis. Stat. § 5.05(1). One of its main

responsibilities is to provide guidance regarding the

requirements of state election law to local election

officials and the voting public. See, e.g., Wis. Stat.

§§ 5.05(12), 7.08(3), 7.08(11). Although the

Commission maintains the statewide list of registered

voters (see Wis. Stat. §§ 5.05(15), 6.36), it does not

have a direct role either in issuing in-person and

absentee ballots to voters or in receiving and counting

those ballots. That job is left to local election officials

3

at the county and municipal level. See generally Wis.

Stat. §§ 7.10 (county clerk duties), 7.15 (municipal

clerk duties), 7.51–7.60 (local canvassing provisions).

Once local officials complete those tasks, they

transmit the results to the Commission, which in turn

tallies up the statewide results and certifies them.

See Wis. Stat. § 7.70.

In the November 2020 election, nearly 3.3

million Wisconsin voters cast ballots for the office of

President of the United States. Those votes have been

counted, audited, and many have even been re-

counted. There has been no indication of any fraud, or

anything else that would call into question the

reliability of the election results. To the contrary,

every indication is that the outcome is correct. A

statewide audit of electronic voting machines used in

the November election found no systematic problems.

The losing candidate, President Donald

Trump, exercised his right to a recount in the two

most heavily Democratic counties. The recount

confirmed that there were no errors in those counties;

it did not materially change the vote tallies for either

President Trump or Vice President Biden. Nothing

uncovered during the recount pointed to fraud

through hacked or otherwise manipulated voting

machines.

There are three lawsuits currently being

litigated in Wisconsin challenging the results

of the Presidential election in the State: Trump

v. Biden, No. 2020CV7092 (Wis. Cir. Ct.

Milwaukee Cty.), President Trump’s appeal of the

recount determination; Trump v. Wisconsin Elections

4

Commission¸ No. 20-cv-1785-bhl (E.D. Wis.), another

case by President Trump with claims similar to

Texas’s here; and Feehan v. Wisconsin Elections

Commission¸ No. 20-cv-1771-pp (E.D. Wis.), a voter

lawsuit dismissed by the district court late in the

evening of December 9, 2020.

REASONS FOR DENYING THE PETITION

AND REQUEST FOR PRELIMINARY RELIEF

I. This Court should not exercise original

jurisdiction.

Original jurisdiction “‘is of so delicate and grave a

character that it” should not be “exercised save

when the necessity [is] absolute.’” Mississippi v.

Louisiana, 506 U.S. 73, 76 (1992) (quoting Wyoming

v. Oklahoma, 502 U.S. 437, 450 (1992), and Louisiana

v. Texas, 176 U.S. 1, 15 (1900)). The power to “control

the conduct of one state at the suit of another” is

“extraordinary.” New York v. New Jersey, 256 U.S.

296, 309 (1921).

Using that power to overturn a state’s election

results would be unprecedented. In determining

whether to exercise its original jurisdiction, this

Court has long considered two factors: (1) “the nature

of the interest of the complaining State”; and (2) “the

availability of an alternative forum in which the

issues tendered can be resolved.” Mississippi,

506 U.S. at 77 (1992). Both factors weigh strongly

against exercising jurisdiction here. Texas’s

complaint rests on baseless claims of election fraud

that have already been aired in—and rejected by—

5

dozens of state and federal courts in lawsuits brought

by plaintiffs with a far greater interest than Texas in

their outcome.

A. Texas has no cognizable interest in

challenging Wisconsin’s

administration of its own election

laws.

Texas can demonstrate neither Article III

standing nor the more demanding requirement of

direct state injury under this Court’s original-

jurisdiction cases. To accept Texas’s bill of

complaint—a blanket challenge by one State to the

manner in which four other States have administered

their own elections, within their own borders, under

their own election laws—would represent a

substantial and unwarranted expansion of this

Court’s original jurisdiction.

At a minimum, to invoke this Court’s original

jurisdiction, Texas must demonstrate that it has

“suffered a wrong through the action of the other

State.” Maryland v. Louisiana, 451 U.S. 725, 735–36

(1981). But Texas is unable to allege that Wisconsin

itself did anything to directly injure Texas’s sovereign

interests. Instead, Texas advances a far more

attenuated theory of injury—that the other States’

supposed violations of their elections laws “debased

the votes of citizens” in Texas. Mot. for P/I at 3. This

speculative logic is not nearly enough to carry Texas’s

burden to prove, by “clear and convincing evidence,” a

“threatened invasion of [its] rights” “of serious

magnitude,” New York, 256 U.S. at 309. Indeed,

6

Texas’s allegations fall far short of what would be

required by Article III in any federal case—that is, a

showing that a plaintiff has “(1) suffered an injury in

fact, (2) that is fairly traceable to the challenged

conduct of the defendant[s], and (3) that is likely to be

redressed by a favorable judicial decision.” Spokeo,

Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

It is well settled under the Court’s original-

jurisdiction cases that “a State has standing to sue

only when its sovereign or quasi-sovereign interests

are implicated and it is not merely litigating as a

volunteer the personal claims of its citizens.”

Pennsylvania v. New Jersey, 426 U.S. 660, 665 (1976).

Apart from attempting to rely on the “personal claims

of its citizens” as electors or voters, Texas struggles to

identify any traditional sovereign injury to support its

claim under the Electors Clause. Instead, Texas

proposes that this Court recognize a new “form of

voting-rights injury”—an injury premised on the

denial of “‘equal suffrage in the Senate’” somehow

caused by the election of the Vice President. Mot. for

Prelim. Inj. at 14 (quoting U.S.Const. art. V, cl. 3).

Texas makes no freestanding constitutional claim to

this effect. In any event, this argument makes no

sense. Texas does not (and cannot) argue that it now

has fewer Senators than any other state. By

definition, therefore, it maintains “equal suffrage in

the Senate.”

Texas’s attempt to garner standing for its claims

under the Equal Protection and Due Process Clauses

fares no better. These “Clauses protect people, not

States.” Pennsylvania, 426 U.S. at 665.

7

If Texas’s theory of injury were accepted, it would

be too easy to reframe virtually any election or voting-

rights dispute as implicating injuries to a States and

thereby invoke this Court’s original jurisdiction. New

York or California could sue Texas or Alabama in this

Court over their felon-disenfranchisement policies.

Garden-variety election disputes would soon come to

the Court in droves. “[I]f, by the simple expedient of

bringing an action in the name of a State, this Court's

original jurisdiction could be invoked to resolve what

are, after all, suits to redress private grievances, [the

Court’s] docket would be inundated.” Pennsylvania,

426 U.S. at 665. And the Constitution’s distinction

between suits by “States” and “Citizens” would be

eviscerated. Id.

This case does not satisfy the direct-injury

requirement. Texas speculates that Wisconsin’s

facilitation of mail-in voting during the pandemic may

have increased the likelihood that third parties would

engage in instances of voter fraud in Wisconsin. Texas

does not offer a shred of evidence that any such fraud

occurred. And Texas does not allege that Wisconsin

directed or authorized any individual to engage in

voter fraud. Nor would any such allegation be

plausible.

In any event, this Court long made clear that its

original jurisdiction does not extend to “political

disputes between states arising out of [the alleged]

maladministration of state laws by officials to the

injury of citizens of another state.” Stephen M.

8

Shapiro, et al, Supreme Court Practice 10-6 (11th ed.

2019); see Louisiana v. Texas, 176 U.S. 1, 15 (1900))

(“Jurisdiction over controversies of that sort does not

embrace the determination of political questions, and,

where no controversy exists between states, it is not

for this Court to restrain the governor of a state in the

discharge of his executive functions in a matter

lawfully confided to his discretion and judgment.”). It

is hard to imagine a case that more clearly runs afoul

of that principle than a dispute over the outcome of

the presidential election, premised on the alleged

maladministration of state election law.

Finally, Texas does not adequately explain how

the extraordinary relief that it seeks from this Court

is necessary to redress any perceived injury. Texas

asks this Court to “remand to the State legislatures

to allocate presidential electors.” Mot. at 17. But

Texas concedes that these legislatures “may review

the presidential election results in their state and

determine that [the] winner would be the same.” Mot.

at 18. They “would remain free to exercise their

plenary authority under the Electors Clause in any

constitutional manner they wish.” Id.

B. Texas seeks to litigate claims that

have already been brought in other

fora.

Not only does Texas lack any cognizable interest

in overturning Wisconsin or any other state’s election,

the claims it seeks to raise here are already being

litigated in numerous courts. Indeed, much of Texas’s

complaint is borrowed from other lawsuits. President

9

Trump himself has raised precisely the same claims

Texas seeks to litigate here. Compare Bill of

Complaint ¶¶ 105–14, with Trump Wisconsin Compl.

¶¶ 168–206 (challenging use of absentee ballot drop

boxes); Bill of Complaint ¶¶ 116–22, with Trump

Wisconsin Compl. ¶¶ 74–108 (treatment of voters

who are indefinitely confined); Bill of Complaint

¶¶ 123–25, with Trump Wisconsin Compl. ¶¶ 235–58

(application of witness address verification

requirements). These lawsuits are much better

vehicles for deciding the claims than an original

action before this Court. Contrary to Texas’s

assertion, its complaint does not present a pure

question of federal constitutional law. Texas’s

complaint is that the defendant states did not

properly administer their own election laws.

Texas does not—and could not—dispute the lower

courts’ ability to fairly hear these claims. Instead,

Texas argues that this Court can act quickly. But

Texas’s hurry is of its own making: it waited until

weeks after the election to file its lawsuit.

C. Granting Texas’s request would

undermine the legitimacy of this

Court and threaten faith in

American democracy.

The ordinary factors that govern this Court’s

original jurisdiction demonstrate that this is not an

“appropriate” case: The State that brought it has no

legitimate interest in the claims (or even standing to

pursue them), and courts across the country have

already heard and rejected them. But, to be clear, this

10

case is not ordinary. Texas is asking this Court to

overturn the will of the people of Wisconsin—and the

nation—based on meritless accusations of election

fraud. If this Court agrees to do so, it will not only

irreparably harm its own legitimacy, but will lend fuel

to a disinformation campaign aimed at undermining

the legitimacy of our democracy.

Texas asserts that this Court’s intervention is

necessary to ensure faith in the election. But it is hard

to imagine what could possibly undermine faith in

democracy more than this Court permitting one state

to enlist the Court in its attempt to overturn the

election results in other states. Merely hearing this

case—regardless of the outcome—would generate

confusion, lend legitimacy to claims judges across the

country have found meritless, and amplify the

uncertainty and distrust these false claims have

generated.

In short, what Texas seeks “is an unprecedented

expansion of [this Court’s] power . . . into one of the

most intensely partisan aspects of American political

life.” Rucho v. Common Cause, 139 S. Ct. 2484, 2507

(2019). “That intervention would be unlimited in

scope and duration—it would recur over and over

again” with every national election. Id. With every

national election, any state attorney general

dissatisfied with another state’s results could sue in

this Court, diminishing the legitimacy of this Court

and this democracy in the process. “Consideration of

the impact of” Texas’s request “on democratic

principles cannot ignore the effect of the unelected

11

and politically unaccountable branch of the Federal

Government assuming such an extraordinary and

unprecedented role.” Id.

Texas has no legitimate interest in overturning

the will of Wisconsin’s voters. This Court should not

allow itself to become a vehicle for those upset at the

outcome of an election to undemocratically overturn

it.

II. Texas’s suit is barred by principles of

laches and the constitutional violations its

desired remedy would cause.

A. Texas waited too long to bring suit.

Even though every single Wisconsin election

administration issue about which Texas complains

has been publicly known for months—and in one case,

years—Texas inexplicably waited to challenge them

until after the November election. This unreasonable

delay merits dismissal on laches grounds, especially

since Texas seeks to disenfranchise Wisconsin voters

who already cast their absentee ballots in reliance on

guidance from state election officials.

“Laches arises when an unwarranted delay in

bringing a suit or otherwise pressing a claim produces

prejudice.” Jones v. Markiewicz-Qualkinbush,

842 F.3d 1053, 1060 (7th Cir. 2016) (citation omitted).

“The obligation to seek injunctive relief in a timely

manner in the election context is hardly a new

concept.” Id. “In the context of elections, . . . any claim

against a state electoral procedure must be expressed

12

expeditiously.” Fulani v. Hogsett, 917 F.2d 1028, 1031

(7th Cir. 1990).

Texas claims its complaints were not ripe

before the election because they rested on contingent,

future events that might not happen. (Mot P/I at 21.)

That is nonsense.

Texas’s attack on the propriety of filling in address

information on absentee envelopes challenges a

practice in use since the 2016 Presidential election,

when the Commission first advised local election

officials. The issue with voters who claimed to be

“indefinitely confined” during COVID-19 was the

subject of a Wisconsin Supreme Court decision in

March, See Appx. A, Jefferson v. Dane County, No.

2020AP557-OA (Wis. Sup. Ct.), and the Commission

issued guidance on March 29 that the Wisconsin

Supreme Court approved. And the installation and

use of absentee ballot drop boxes in almost every

Wisconsin county received ample public discussion in

the months leading up to the fall election.

Long before Wisconsin voters cast their ballots,

Texas could have challenged every one of these

election administration methods. That delay was

clearly unwarranted. If Texas had brought a timely

challenge before the election—and succeeded—

Wisconsin voters could have adjusted their

understanding of applicable voting procedures and

cast their ballots accordingly. Instead, Texas waited

until after the election and now seeks to pull the rug

out from under voters who cannot recast their ballots.

Rewarding this delay would obviously prejudice—

indeed, disenfranchise—the millions of Wisconsin

13

voters who cast their ballots in reliance on these long-

announced election practices. Laches prevents

precisely this kind of gamesmanship by litigants who

unreasonably sleep on their rights to the detriment of

the public interest.

Indeed, the Michigan federal court in King

dismissed similar election challenges on laches

grounds, where the plaintiffs “could have brought

their claims well in advance of or on Election Day” but

did not. 2020 WL 7134198, at *7. The justification for

applying laches was “at its peak,” given that “[w]hile

plaintiffs delayed, the ballots were cast; the votes

were counted; and the results were certified.” Id. The

same is true here.

B. The post-election remedy Texas

seeks would violate the due process

rights of Wisconsin voters and is not

supported by 3 U.S.C. § 2.

Even if laches did not bar Texas’s claims, the

remedy it seeks is unavailable. Texas asks this Court

to enjoin any appointment of electors based on the

results of the November 3 election, and to remand the

appointment of electors in the defendant states to

their respective state legislatures. Brief supporting

M/L, 16–17. That relief is procedurally

unprecedented, substantively extraordinary, and

unconstitutional.

14

1. The relief Texas seeks would

violate the due process rights

of Wisconsin voters.

Texas suggests that such sweeping and radical

relief is authorized by the role of state legislatures

under the Electors Clause and by 3 U.S.C. § 2, a

never-before-used statute that allows a state, under

certain circumstances, to appoint its electors on a date

later than the national election day. But both

Article II and 3 U.S.C. § 2 must be construed

consistent with the constitutional requirement of due

process. To retroactively override Wisconsin’s

statutorily designated method for choosing

presidential electors after the election has taken

place, as Texas seeks, would violate Wisconsinites’

federal due process rights by retroactively overriding

election procedures that those voters relied on.

The U.S. Constitution provides that each state

shall appoint its presidential electors “in such

Manner as the Legislature thereof may direct.” Art.

II, § 1. In accordance with that provision, the

Wisconsin Legislature has directed by statute that

Wisconsin’s presidential electors shall be appointed

by popular election. See Wis. Stat. §§ 5.10,

5.64(1)(em), 8.25(1). The November 3, 2020,

presidential election—which Texas seeks to

invalidate—was conducted via popular vote in

furtherance of that legislative directive. That

directive, having now been carried out, cannot be

retroactively undone and superseded by action of the

Wisconsin Legislature. As the Pennsylvania Supreme

Court rightly put it recently, “there is no basis in law

by which the courts may . . . ignore the results of an

15

election and recommit the choice to the [the state

legislature] to substitute its preferred slate of electors

for the one chosen by a majority of [the state’s]

voters.” Kelly v. Commonwealth of Pennsylvania, No.

68 MAP 2020, 2020 WL 7018314, at *3 (Pa. Nov. 28,

2020).

Once a state legislature has directed that the

state’s electors are to be appointed by popular

election, the people’s “right to vote as the legislature

has prescribed is fundamental.” Bush, 531 U.S. at 104

(per curiam). That fundamental right to vote includes

“the right of qualified voters within a state to cast

their ballots and have them counted.” United States

v. Classic, 313 U.S. 299, 315 (1941). Thus, the power

that Article II vests in the state legislature is

necessarily “subject to the limitation that [it] may not

be exercised in a way that violates other specific

provisions of the Constitution,” including provisions

that protect the fundamental right to vote. Williams

v. Rhodes, 393 U.S. 23, 29 (1968). And while Article II

unquestionably allows a state legislature to change

the method for choosing the state’s electors, it cannot

make changes in such a manner or under

circumstances that would violate the Due Process

Clause of the Fourteenth Amendment. So while the

Wisconsin Legislature could seek to amend the

existing Wisconsin statutes to provide in future

presidential contests for direct legislative

appointment of presidential electors, the guarantee of

due process forbids this Court from enforcing the type

of post-election rule changes Texas seeks. See Griffin

v. Burns, 570 F.2d 1065, 1079 (1st Cir. 1978)

(retroactive invalidation of absentee ballots violated

due process).

16

In general, a due process violation exists where

“(1) likely reliance by voters on an established election

procedure and/or official pronouncements about what

the procedure will be in the coming election; and (2)

significant disenfranchisement that results from a

change in the election procedures.” Bennett v.

Yoshina, 140 F.3d 1218, 1227 (9th Cir. 1998). As

relevant here, Wisconsin voters who reasonably relied

on the established voting procedures that Texas only

now challenges will be disenfranchised by the

thousands, raising serious concerns of a due process

violation. This Court should avoid granting a remedy

that will create a constitutional violation. See Wright

v. Sumter Cty. Bd. of Elections & Registration, 361 F.

Supp. 3d 1296, 1301 (M.D. Ga. 2018) (declining to

adopt remedial redistricting plan, and noting “the

obligation of the Court to ensure that a remedial plan

is constitutional”), aff’d, No. 18-11510, 2020 WL

6277718 (11th Cir. Oct. 27, 2020); Baber v. Dunlap,

349 F. Supp. 3d 68, 77-78 (D. Me. 2018) (observing “a

certain degree of irony because the remedy plaintiffs

seek could deprive more than 20,000 voters of what

they understood to be a right to be counted with

respect to the contest between [two candidates],” and

noting that “such a result would [raise equal

protection concerns about “valuing one class of voters

. . . over another”); see also Ford v. Tennessee Senate,

No. 06-2031, 2006 WL 8435145, at *14 (W.D. Tenn.

Feb. 1, 2006) (“Voters whose right to vote is

challenged must be afforded minimal, meaningful due

process to include, notice and opportunity to be heard

before they can be disenfranchised”).

Federal courts have exhibited sensitivity to the

reliance interests of voters in considering injunctive

17

relief in response to election challenges. For example,

in Griffin, the First Circuit held that a Rhode Island

Supreme Court decision unexpectedly changed state

law after voters had relied on their absentee ballots

being counted, and that “due process is implicated

where the entire election process including as part

thereof the state’s administrative and judicial

corrective process fails on its face to afford

fundamental fairness.” 570 F.2d at 1078.

Similarly, in Northeast Ohio Coalition for

Homeless v. Husted, the Sixth Circuit considered a

case in which wrong-precinct and deficient-

affirmation provisional ballots were disqualified

because of poll-worker error that caused the ballot

deficiencies. 696 F.3d 580, 585 (6th Cir. 2012). The

court noted that the Due Process Clause protects

against “extraordinary voting restrictions that render

the voting system fundamentally unfair,” id. at 597,

and concluded that “[t]o disenfranchise citizens whose

only error was relying on poll-worker instructions

appears to us to be fundamentally unfair,” id. at 597.

Accordingly, the Sixth Circuit affirmed a preliminary

injunction entered by the district court that required

ballots cast incorrectly as a result of poll-worker error

to be counted. Id. at 589-90.

Because Texas made no effort to pursue these

challenges earlier, thousands of Wisconsinites cast

their votes in reliance on the procedures dictated

to them by election officials. Widespread

disenfranchisement for following the rules does not

comport with due process or a healthy democracy.

18

2. Texas’s invocation of 3 U.S.C.

§ 2 does not help it.

Texas’s reliance on 3 U.S.C. § 2 fails for similar

reasons. That statute provides that, “[w]henever any

State has held an election for the purpose of choosing

electors, and has failed to make a choice on the day

prescribed by law, the electors may be appointed on a

subsequent day in such a manner as the legislature of

such State may direct.” 3 U.S.C. § 2. According to

Texas, that statute applies not simply when a state

“has failed to make a choice” on election day, 3 U.S.C.

§ 2, but rather “[w]hen a State fails to conduct a valid

election for any reason,” including because of the

kinds of state election law violations alleged in this

case. (Brief in Support of Motion for Leave to File Bill

of Complaint, 5.) Texas’s reading of 3 U.S.C. § 2 would

raise serious doubts about its constitutionality, and

the statutory language is readily susceptible to a less

problematic interpretation.

Under Texas’s interpretation of 3 U.S.C. § 2, a

state that has held a popular presidential election on

election day has nonetheless “failed to make a choice”

of its electors on that day, if post-election litigation

challenges the validity of certain votes under state

law. There would be grave doubts, however, about the

constitutionality of a statute that would allow a state

legislature, whenever popular election results are

disputed, to simply replace the popular choice with its

own slate of electors. Such an unreasonable outcome

would disenfranchise everyone who already voted and

violate due process, as discussed above. That

interpretation of 3 U.S.C. § 2 cannot be correct.

19

The better reading of the statute is that a state

that holds a popular presidential election on election

days “fails” to choose its electors on that day only

where the completion of the election process on that

date is prevented by some inherent feature of the

state’s election procedures or by some extraordinary

occurrence, such as a widespread natural disaster or

similar emergency that prevents a significant portion

of the public from being able to vote. Under such a

reading, the completion of the election process is

delayed, but nobody is disenfranchised, and the due

process concerns described above are avoided.

That reading of 3 U.S.C. § 2 is also consistent with

the statute’s legislative purpose. It arose out of

Congress’s establishment of a uniform national

election date in 1845. Act of Jan. 23, 1845, 5 Stat. 721

(1845) (codified at 3 U.S.C. § 1). At that time, it was

recognized in Congress that some states might adopt

presidential election procedures that would

sometimes require runoff elections, which would

make it impossible to complete the selection of

electors on election day. See Cong. Globe, 28th Cong.,

2d Sess. 10, 14 (1844) (remarks of Rep. Hale). The

purpose of the statute was to give states flexibility

where state election procedures or an unforeseen

emergency prevented the completion of the election

process in a single day.

Here, it is undisputed that Wisconsin held and

completed its popular vote on November 3, 2020, and

therefore it “[made] a choice on the day prescribed by

law.” Where the state legislature has given the people

the right to vote for President, and where the people

have exercised that fundamental right, the goal of any

20

subsequent election dispute in the courts is simply to

determine whom the people have chosen.

III. Texas fails to state a claim under the

Electors Clause, due process, or equal

protection, and its arguments about

Wisconsin law are wrong on their face.

Even aside from these many threshold failures,

Texas’s Bill of Complaint fails to state a claim. It

states no claim under the Electors Clause, due

process, or equal protection, and its understanding of

Wisconsin law is wrong on its face.

A. Texas’s allegations of Wisconsin

state election law violations fail to

state an Electors Clause claim.

Count I of Texas’s Bill of Complaint asserts a claim

under the Electors Clause. That claim fails as a

matter of law.

Contrary to Texas’ hyperbolic rhetoric, it is well

established that allegations of a violation of state law,

including even a deliberate violation of state election

laws by state election officials, do not state a claim

under the U.S. Constitution. See Shipley v. Chicago

Bd. of Election Comm’rs, 947 F.3d 1056, 1062 (7th Cir.

2020) (citation omitted); see also Bognet v. Sec’y of the

Comm. of Pennsylvania, __ F.3d. __, 2020 WL

6686120, *6 (3d Cir., Nov. 13, 2020); (“[F]ederal courts

are not venues for plaintiffs to assert a bare right ‘to

have the Government act in accordance with law.”)

(citation omitted); Martinez v. Colon, 54 F.3d 980, 989

(1st Cir. 1995) (“[T]he Constitution is not an empty

21

ledger awaiting the entry of an aggrieved litigant's

recitation of alleged state law violations—no matter

how egregious those violations may appear within the

local legal framework.”).

This non-interference principle rests on a “caution

against excessive entanglement of federal courts in

state election matters”:

The very nature of the federal union

contemplates separate functions for the states.

If every state election irregularity were

considered a federal constitutional deprivation,

federal courts would adjudicate every state

election dispute, and the elaborate state

election contest procedures, designed to assure

speedy and orderly disposition of the

multitudinous questions that may arise in the

electoral process, would be superseded by a

section 1983 gloss.

Bodine v. Elkhart Cty. Election Bd., 788 F.2d 1270,

1272 (7th Cir. 1986).

Texas’s Electors Clause theory violates this core

federalism principle, as it rests solely on allegations

that various acts by state and local election officials

in Wisconsin were inconsistent with state election

statutes.

Texas’s contrary position would swallow this

fundamental rule of federalism. In their view, the

alleged violations of state election statutes by state

officials usurped the Wisconsin Legislature’s

constitutional authority to direct the manner of

22

appointing Wisconsin’s presidential electors. That

theory proves far too much, as it would convert

virtually any alleged state law violation into a federal

constitutional claim. The general rule that a violation

of state law does not give rise to a federal

constitutional claim, see Shipley, 947 F.3d at 1062,

would no longer have any teeth and losing candidates

could evade it simply by alleging that any violation of

a statute enacted by the State Legislature is, ipso

facto, an Electors Clause violation. That result would

threaten to replace Wisconsin’s “elaborate state

election contest procedures” with federal court

intervention in the “multitudinous questions that

may arise in the electoral process,” just as Bodine

warned against. 788 F.2d at 1272.

That is why a federal district court in Michigan

recently dismissed an Electors Clause claim like this

one. King v. Whitmer, No. 20-13134, 2020WL7134198

(E.D. Mich.). There, too, the plaintiffs alleged that

state officials violated the Electors Clause by

deviating from the requirements of a state election

code. Id. at *11. The court recognized that “Plaintiffs’

claims are in fact state law claims disguised as federal

claims” and dismissed them:

By asking the Court to find that they

have made out claims under the clauses

due to alleged violations of the Michigan

Election Code, Plaintiffs ask the Court to

find that any alleged deviation from

state election law amounts to a

modification of state election law and

opens the door to federal review.

Plaintiffs cite to no case—and this Court

23

found none—supporting such an

expansive approach.

Id.

To justify federal court intervention in this state

election law dispute, Texas relies primarily on this

Court’s decision in Bush v. Gore, 531 U.S. 98 (2000),

but that decision does not support their Electors

Clause claim. It is true that one of the issues

identified by the Court in Bush was “whether the

Florida Supreme Court established new standards for

resolving Presidential election contests, thereby

violating Art. II, § 1, cl. 2, of the United States

Constitution.” Id. at 103. The Court’s holding,

however, was based on finding a violation of the Equal

Protection Clause of the Fourteenth Amendment, not

a violation of the Electors Clause. See id. at 105–09.

The Electors Clause issue was discussed in greater

depth in a concurring opinion by Chief Justice

Rehnquist, see id. at 111–22, but that opinion did not

garner a majority and thus has no precedential effect.

In any event, the Rehnquist concurrence is

distinguishable, for it addressed whether a state high

court infringed upon the authority of the state’s

legislature by engaging in judicial interpretation that

altered the “general coherence” of the state’s election

laws “so as to wholly change the statutorily provided

apportionment of responsibility among” state election

officials and the state courts. Id. at 114. Here, in

contrast, Texas’s theory has nothing to do with a state

supreme court expressly overriding state election

statutes after the election has occurred, but instead

contends that state election officials violate the

24

Electors clause simply when they err in interpreting

and applying state election statutes while

administering an election.

In Bush there was no dispute that the Florida

Supreme Court was overriding unambiguous

provisions in that state’s election code. Here, however,

Texas argues that Wisconsin election officials violated

the federal Constitution by adopting interpretations

of Wisconsin election statutes with which Texas

disagrees, and which are currently being hotly

disputed in ongoing litigation in the Wisconsin state

courts. The court in Miller v. Treadwell, 736 F. Supp.

2d 1240 (D. Alaska 2010), rejected just such an

Elections Clause claim. There, the plaintiff contended

that state officials violated state law by counting

misspelled votes for write-in candidates. But the

plaintiff’s reliance on a debatable “interpretation” of

state law could not support a federal claim, given that

it was not “clearly contrary to the face of the statute”

and the state’s “past practice” was consistent with its

approach. Id. at 1243. Here, Texas offers no more

than that: debatable (and incorrect) interpretations of

state election statutes that cannot possibly rise to the

level of a federal constitutional claim without

federalizing practically all state election disputes.

Perhaps most importantly, under Texas’s overly

expansive interpretation, the Electors Clause would

go beyond authorizing state legislatures to direct the

method for appointing state presidential electors, and

would override the entire constitutional separation of

powers in the states, even where—as in Wisconsin—

the state legislature has adopted a method of

25

appointing electors that incorporates the

constitutional structure of state government.

The Wisconsin Legislature has directed that the

state’s electors be appointed by popular vote for

presidential candidates. See Wis. Stat. §§ 5.10,

5.64(1)(em), 8.25(1). Those popular presidential

elections are conducted under the same statutory

procedures that apply in other elections in Wisconsin,

and are administered by the same state and local

election officials who administer other elections. See,

generally, Wis. Stat. chs. 5–12. And those procedures

provide for the ordinary method of resolving disputes

about their administration under Wisconsin’s

constitutional separation of powers.

It is an axiomatic principle of the separation of

powers that executive branch officials, in order to

carry out their constitutional function of executing

statutes, necessarily must interpret the meaning of

those statutes and must exercise executive judgment

and discretion in applying them to particular facts.

See Bowsher v. Synar, 478 U.S. 714, 733 (1986)

(“Interpreting a law enacted by Congress to

implement the legislative mandate is the very essence

of ‘execution’ of the law.”); Tetra Tech EC, Inc. v.

Wisconsin Dep’t of Revenue, 2018 WI 75, ¶ 53, 382

Wis. 2d 496, 543, 914 N.W.2d 21 (“The executive . . .

must determine for himself what the law requires

(interpretation) so that he may carry it into effect

(application). Our constitution not only does not

forbid this, it requires it.”). The Wisconsin Legislature

adopted that fundamental division between the

legislative and executive powers of the state when it

chose to have Wisconsin’s presidential electors

26

appointed through popular elections administered by

the same state and local election officials who

administer all other elections under Wisconsin’s

election statutes.

It is an equally axiomatic principle that the

executive branch’s interpretation and application of

state statutes in particular situations are subject to

review by the judicial branch. The Wisconsin

Legislature adopted this principle, too, when it

chose to have Wisconsin’s presidential elections

administered under the same election statutes that

are routinely interpreted and applied by state courts

in deciding election cases.

It goes without saying that state courts may

sometimes conclude that executive officials have

erred in interpreting and applying a state election

statute. Such errors, when they occur, give rise to a

claim of ultra vires action under state law. Such

routine claims of executive branch error, however, do

not automatically rise to the level of a constitutional

claim that the executive is usurping the legislative

function of changing the law. Even less do such claims

of ultra vires action automatically give rise to a

federal constitutional claim under the Electors

Clause, or to the kind of multi-state constitutional

crisis that Texas here seeks to invent.

B. Texas states no claim under due

process or equal protection.

For similar reasons, Texas’s equal protection and

due process claims fail, as well. Even assuming Texas

can stand in the shoes of voters, it merely asserts

27

state-law claims that are fully addressable through

state procedures.

The federal “Constitution is not an election fraud

statute.” Bodine, 788 F.2d at 1271. The federal

constitution “is implicated only when there is ‘willful

conduct which undermines the organic processes by

which candidates are elected.’” Id. (citation omitted).

Therefore, “garden variety election irregularities that

could have been adequately dealt with through the

procedures set forth in [state] law” do not support

constitutional due process claims. Id.; see also Bennett

v. Yoshina, 140 F.3d 1218, 1226 (9th Cir. 1998).

Texas relies on a vote-dilution theory, which it

restyles as vote “diminish[ment],” Mot. for Leave at 8,

or “debase[ment],” Mot. for P/I at 3. Although vote

dilution theories may sometimes support federal

claims, Texas’s version does not. Recognized vote

dilution claims involve state laws that structurally

disadvantage certain groups in the voting process.

For instance, Reynolds v. Sims, 377 U.S. 533 (1964),

the case Texas relies on, held that state legislative

districts must be apportioned by population to avoid

diluting the votes of residents in disproportionately

populous districts. Other vote dilution claims

similarly target legislative apportionment schemes

that disadvantage minorities in violation of either

equal protection or the Voting Rights Act of 1965

(“VRA”). See, e.g., Thornburg v. Gingles, 478 U.S. 30,

34 (1986) (multimember districts in North Carolina

violated VRA by diluting black vote); Miller v.

Johnson, 515 U.S. 900, 911 (1995) (“[A] vote dilution

claim alleges that the State has enacted a particular

voting scheme as a purposeful device ‘[t]o minimize or

28

cancel out the voting potential of racial or ethnic

minorities.’” (citation omitted)).

Texas’s theory, in contrast, rests on alleged vote

counting violations and does not fit within this

recognized malapportionment framework, as the

Third Circuit held just days ago in Bognet, 2020 WL

6686210, at *11. There, individual voters alleged that

votes arriving or cast after election day were

unlawfully counted, thereby diluting the plaintiffs’

votes in an unconstitutional manner. Id. at *9. The

Third Circuit rejected this theory, explaining that

“[c]ontrary to [this] conceptualization, vote dilution

under the Equal Protection Clause is concerned with

votes being weighed differently.” Id. Recognizing this

unprecedented kind of dilution claim would upset the

delicate balance between state and federal authority

over elections:

[I]f dilution of lawfully cast ballots by

the “unlawful” counting of invalidly cast

ballots “were a true equal-protection

problem, then it would transform every

violation of state election law (and,

actually, every violation of every law)

into a potential federal equal-protection

claim requiring scrutiny of the

government's ‘interest’ in failing to do

more to stop the illegal activity.”

Bognet, 2020 WL 6686210, at *11 (citation omitted).

Texas’s claim would implicate practically any

state election, because “[i]n just about every election,

votes are counted, or discounted, when the state

29

election code says they should not be. But the

Constitution ‘d[oes] not authorize federal courts to be

state election monitors.’” Boockvar, 2020 WL

5997680, at *48 (citing Gamza v. Aguirre, 619 F.2d

449, 454 (5th Cir. 1980)). Yet “state election monitors”

is exactly what federal courts would become, if

unlawfully cast votes alone sufficed to state a

constitutional claim.

C. Texas’s assertions of violations of

Wisconsin law are meritless on their

face.

However Texas tries to dress up its quibbles

about the Wisconsin election in federal garb, its

understanding of Wisconsin election law is just plain

wrong. The three practices it identifies all comport

with Wisconsin statutes.

1. Drop boxes are legal under

Wisconsin law.

Texas argues that voters violated Wisconsin law

when they delivered their absentee ballots to drop

boxes set up by local election officials around the

state. Officials designated these boxes as absentee

delivery sites to handle the expected increase in

absentee voting during the November election cycle.

They followed Commission advice on establishing

secure drop boxes where voters could deliver

their completed absentee ballots. Statewide, 66 of

Wisconsin’s 72 counties designated these boxes, and

state legislative leaders “wholeheartedly support[ed]

voters’ use” of this “lawful” method.

30

Lawful it was: Wis. Stat. § 6.87(4)(b)1. permits

absentee ballots to be returned through “deliver[y] in

person, to the municipal clerk.” Texas argues that

drop boxes were illegal based on its mistaken

assumption that drop boxes were “alternate absentee

ballot sites” under a different statute, Wis. Stat.

§ 6.855(1), which municipalities may establish using

certain procedures. But they were not. As section

6.855(1) explains, alternate ballot sites are places

where people vote: an alternate site is a location

where “electors of the municipality may request and

vote absentee ballots and to which voted absentee

ballots shall be returned.” (emphasis added). That has

nothing to do with the locations a clerk may designate

to return absentee ballots completed in the voter’s

home. Drop boxes are a location that clerks may

designate for such returns. Wis. Stat. § 6.87(4)(b)1.

2. The Wisconsin Supreme Court

has approved of the

Commission’s guidance on

indefinitely confined voters.

Texas also claims that Wisconsin violates its

statutes by allowing voters who have identified as

indefinitely confined to maintain that status. For

voters who determine they are “indefinitely confined

because of age, physical illness or infirmity or . . .

disabled for an indefinite period,” Wis. Stat.

§ 6.86(2)(a), Wisconsin law allows voters to cast

absentee ballots without meeting photo identification

requirements, which can be burdensome if the voter

needs to leave her home to photocopy her ID. Texas

complains that two municipalities made public

statements on March 25, 2020, about indefinite

31

confinement eligibility during the COVID-19

pandemic. (Motion for Leave at 33.) But Texas fails to

tell the whole story, which confirms that the

Commission subsequently gave appropriate advice to

all local election officials.

After the March 25 communications from the local

officials that Texas complains of, a plaintiff brought

suit in the Wisconsin Supreme Court objecting to it.

On March 29, the Commission disseminated its own

guidance concerning indefinitely confined status,

“Guidance for Indefinitely Confined Electors COVID-

19.” It cautioned that while age or infirmity might

cause a voter to become indefinitely confined during

the pandemic, “Indefinitely confined status shall not

be used by electors simply as a means to avoid the

photo ID requirement without regard to whether they

are indefinitely confined because of age, physical

illness, infirmity or disability.” The Jefferson court

reviewed the March 29 guidance and concluded that

it “provides the clarification on the purpose and

proper use of the indefinitely confined status that is

required at this time.” See Appx. A, Supreme Court

March 31, 2020 Order.

Texas offers no proof of a single voter who cast a

ballot in the general election who did not qualify for

indefinite confinement status. Instead, Texas simply

points out that the total number of voters who

identified as indefinitely confined increased in

November 2020. Texas forgets that far more people

voted overall, and absentee generally, in November

2020. According to Commission data, in 2020, roughly

10% of absentee voters across the State identified as

indefinitely confined, roughly the same percentage of

32

absentee voters who did so in the 2016 Presidential

election. Roughly 75,000 of those voters resided in

Dane in Milwaukee Counties; the remaining 165,000

or so were spread throughout every other county in

Wisconsin. The vast majority of these voters—around

199,000—were older than 50. In other words, the

percentage of absentee voters claiming that status did

not significantly increase, the voters were not

concentrated in the more heavily Democratic

counties, and it was overwhelmingly an older

population more likely, due to “age” or “infirmity,” to

identify appropriately as indefinitely confined.

3. Wisconsin’s practice for

handling witness addresses, in

place since 2016, followed

state law.

Texas’s third complaint is that, under

longstanding Commission guidance, clerks fill in

extra witness address information on ballot

envelopes. Texas asserts that this violates Wisconsin

law, but it is wrong.

When an absentee voter fills out an absentee

ballot, an adult witness must be present to verify the

voter’s identity and other information. Wis. Stat.

§ 6.87(4)(b)1. To guarantee that a witness was

actually present, absentee ballots contain a sworn

certification by the witness attesting to the absentee

voter’s identity and residency. Wis. Stat. § 6.87(2).

Below the certification, the witness signs her name

and writes her address. Id. The purpose of a witness

is to attest to the genuineness of the absentee voter’s

certification and to be available, if necessary, to

33

personally testify as to the matters witnessed. The

address allows officials to contact the witness, if

needed.

Occasionally, witnesses fill in only a street address

but not a municipality, state or zip code, often when

they live in the same household with the voter. Since

before the 2016 presidential election, the Commission

has advised local election officials statewide that

clerks should “take corrective action in an attempt to

remedy a witness address error” and suggested

reliable ways to do so, including by filling in missing

information when the voter and witness indicate they

live at the same street address.

This longstanding practice comports with state

law: the statute does not define for an envelope to be

“missing the address” of the witness. In the context of

needing to contact a witness in a given municipality,

a street address might well suffice. And the statute

does not prohibit individuals other than the witness

from adding additional address information on the

envelope.

IV. Texas cannot justify preliminary relief or

a stay.

Texas cannot meet its burden to justify

preliminary relief. A preliminary injunction “may

only be awarded upon a clear showing that the

Plaintiff is entitled to such relief.” Winter, v. Nat. Res.

Def. Council, 555 U.S. 7, 22 (2008); see also Goodman

v. Ill. Dep’t of Fin. & Prof’l Regulation, 430 F.3d 432,

437 (7th Cir. 2005) “A Plaintiff seeking a preliminary

34

injunction must establish [1] that he is likely to

succeed on the merits, [2] that he is likely to suffer

irreparable harm in the absence of preliminary relief,

[3] that the balance of equities tips in his favor, and

[4] that an injunction is in the public interest.” Illinois

Republican Party v. Pritzker, 973 F.3d 760, 762 (7th

Cir. 2020) (brackets added) (quoting Winter, 555

U.S. at 20.

As the discussion of the merits above

demonstrates, Texas has failed to demonstrate that it

is likely to succeed on the merits of its claims. Texas

has no likelihood of success on the merits. This case

has multiple threshold defects that would require

dismissal. Texas lacks standing, its inexplicably late

claim is barred by laches, and the relief it requests is

barred by the Substantive Due Process Clause.

Texas has not shown that it would suffer

irreparable harm. Indeed, such an order would only

harm the millions of Wisconsin voters who

determined the outcome of the election.

And the balance of equities and public interest

favor denying an injunction. The public would be

severely harmed by Texas’s requested relief.

Nullifying Wisconsin’s election on the basis of a

unprecedented legal theory outweighs the scant

chance that Texas will succeed on its claims.

The same is true for the voters in the other States

named in this complaint. Wisconsin agrees with

Georgia, Michigan, Pennsylvania in the substance of

their briefs filed today and in their efforts to

35

safeguard their sovereignty and to rebuff another

State’s effort to nullify their elections.

As explained by the Third Circuit, “[d]emocracy

depends on counting all lawful votes promptly and

finally, not setting them aside without weighty

proof. The public must have confidence that

our Government honors and respects their votes.”

Donald J. Trump for President, Inc. v. Pennsylvania,

No. 20-3371, 2020 WL 7012522, at *9 (3d Cir. Nov. 27,

2020). The “public interest strongly favors finality,

counting every lawful voter’s vote, and not

disenfranchising . . . voters who voted by mail.” Id.

That is because “[d]emocracy depends on counting all

lawful votes promptly and finally, not setting them

aside without weighty proof.” Id.

CONCLUSION

For the reasons set forth above, this Court should

deny Texas’s motion for leave to file a bill of complaint

against the name states and should deny Texas’s

motion for a preliminary injunction.

Respectfully submitted,

JOSHUA L. KAUL

Attorney General of Wisconsin

THOMAS C. BELLAVIA

Counsel of Record

CHARLOTTE GIBSON

Assistant Attorneys General

Counsel for the State of Wisconsin

36

Wisconsin Department of Justice

Post Office Box 7857

Madison, Wisconsin 53707-7857

(608) 266-8690

bellaviatc@doj.state.wi.us

December 10, 2020